Nattin Realty, Inc. v. Ludewig

• Decision Date: 23 September 1971
• Citation: 67 Misc.2d 828,324 N.Y.S.2d 668
• Parties: , 3 ERC 1121 Application of NATTIN REALTY, INC., Petitioner, v. Joseph E. LUDEWIG, Building Inspector and Zoning Administrator of the Town ofWappinger, The Town Board of the Town of Wappinger, Respondents.
• Court: New York Supreme Court

Page 668

324 N.Y.S.2d 668

67 Misc.2d 828, 3 ERC 1121

Application of NATTIN REALTY, INC., Petitioner, v. Joseph E. LUDEWIG, Building Inspector and Zoning

Administrator of the Town ofWappinger, The Town

Board of the Town of Wappinger, Respondents.

Supreme Court, Dutchess County.

Sept. 23, 1971.

Brent, Phillips, Dranoff & Savad, Nanuet, for petitioner.

Allan E. Rappleyea, Poughkeepsie, for respondents.

JOSEPH F. HAWKINS, Justice.

Petitioner, by this Article 78 proceeding, seeks to set aside the determination of the respondent Building Inspector denying its application for a building permit. Additionally, petitioner prays for a declaration that the amendment to the Zoning Ordinance of the Town of Wappinger, enacted on March 9, 1970, changing the zoning classification of petitioner's property is unconstitutional as applied to the plaintiff; further, that Local Law No. 2 of 1967 is also unconstitutional.

The petitioner's property which has been rezoned consists of three large tracts of land, known as the 'Riverdale' apartment project. Application had been made to the Planning Board for approval which, on February 4, 1970, was granted to erect multiple-family residential dwellings on one of the three said sites. The owner plans to build nineteen garden-type apartment buildings, containing a total of some 342 dwelling units. Subsequently, but prior to issuing the building permit, the Town Board proposed, considered and then passed an amendment to the Zoning Ordinance which placed the subject and some adjacent properties in an one-family residential district, removing the prior classification which permitted erection of multiple-dwelling buildings.

Initially, it should be noted that Mr. Justice Marbach, in his opinion dated April 23, 1970, partially set the procedural law of the case by holding that petitioner need not have sought relief from the Zoning Board and, hence, its Article 78 proceeding was properly instituted.

The petitioner's basic contentions of unconstitutionality and invalidity are that the zoning amendments are not part of a comprehensive plan; that Local Law No. 2 of 1967 is a 'forbidden interference' with plaintiff's property rights; that possible conflicts are created by providing for standards for water supply which vary from those of the County's Health Department. It further urges that to require creating separate water corporations to supply water and to transfer title to the municipality under certain circumstances, coupled with requiring that security bonds be posted, further render the said local law unconstitutional since they impose unlawful restraints and limitations.

The respondents urge, inter alia, that no declaratory judgment lies since the petitioner's other action against some of the individual defendants accords petitioner adequate pecuniary relief; that its proof of 'economic injury' is confined to only one parcel; that assuming such economic loss, the Town, nevertheless, could properly enact legislation 'reducing the density of population in a large area'; that there exists such 'comprehensive plan' justifying the changes of zoning; that 'the Town's Master Plan was its Zoning Ordinance and Map'; and that appropriate density of population factors were considered by the municipality's zoning consultants in their report of July, 1962--the 'Development Plan for the Town of Wappinger.'

Respondents' primary emphasis, however, is that the petitioner's proposed local water supply and sewage disposal facilities are inadequate for the anticipated population to be housed in the buildings.

Petitioner stresses three holdings in support of its contentions respecting unconstitutionality and invalidity. Udell v. Haas, 21 N.Y.2d 463, 288 N.Y.S.2d 888, 235 N.E.2d 897, postulates that a zoning change not anchored to a comprehensive zoning plan may be proscribed as 'spot zoning.' At bar, the municipality does have a total and complete Zoning Plan and Map whether or not it is denominated as 'comprehensive.' A comprehensive Zoning Ordinance does not unalterably or irrevocably fix a particular classification; it may be changed, if not wrought discriminatorily or capriciously. The existence of a master plan is some assurance against precipitate, discriminatory or ill-considered legislation; it does not, however, 'freeze' each zoning designation.

Westwood Forest Estates, Inc. v. Village of South Nyack, 23 N.Y.2d 424, 297 N.Y.S.2d 129, 244 N.E.2d 700, initially appears to support the petitioner. There, however, 'the problem' which the municipality sought to resolve '* * * was the hazard of increased pollution of the Hudson River, after inadequate treatment of the sewage effluent', and which condition had long endured (p. 427, 297 N.Y.S.2d p. 132, 244 N.E.2d p. 702). Thus the difficulty was beyond the owner's power to remedy or to abate; rather, it was the municipality's inadequate sewage disposal plant. The problem was 'general to the community and not caused by the nature of plaintiff's land.' At bar, the contrary prevails.

Citing Fulling,...